IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NUMBER F-88-631-B IN THE 158TH CRIMINAL
DISTRICT COURT DENTON COUNTY
O R D E R
This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07 of the Texas Penal Code. Ex Parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967). Applicant was convicted of unauthorized use of a motor vehicle and sentenced to twenty-five years' imprisonment. In an unpublished opinion, Applicant's conviction was affirmed on July 20, 1993. Howe v. State, No. 02-92-00142-CR (Tex. App. -- Fort Worth 1993, no pet.).
This case was remanded to the trial court on September 15, 2004 to determine whether Applicant was ever in custody pursuant to a pre-revocation or blue warrant, and if so, the dates he was in custody, and whether he received time credit toward the expiration of his sentence for the period of time he spent in confinement pursuant to any pre-revocation warrant.
On May 5, 2005, this Court received a supplemental record from the trial court. The court issued findings of fact and conclusions of law and recommended that relief be denied. After a review of the supplemental record, it is this Court's opinion that there are unresolved facts which warrant a second remand. Applicant alleges that he was held on a blue or pre-revocation warrant for two periods of time, from March 4, 1998 to May 12, 1998, and from February 11, 1999 to June 2, 1999. It cannot be ascertained from the record before the Court whether Applicant was in custody pursuant to a pre-revocation warrant during the time periods he claims he was held on such warrants. Additionally, it is unknown if Applicant was given time credit for the time periods he may have spent in custody on any pre-revocation warrants following his February 22, 1993 release. As such, the trial court shall order the Texas Board of Pardons and Paroles and/or the Texas Department of Criminal Justice, Review and Release Division, and/or the Warrants Section of the Texas Department of Criminal Justice to file an affidavit, with supporting documentation, addressing the aforementioned issues. Tex. Code Crim. Proc. art. 11.07 § 3. The trial court may also order depositions, interrogatories, or hold a hearing. In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent, and the Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing. With respect to Applicant's 1993 release on parole, the trial court shall determine if Applicant is entitled to any time credit for time spent in custody pursuant to any pre-revocation warrants. Ex parte Canada, 754 S.W.2d 660, 668 (Tex. Crim. App. 1988). The trial court may also make any further findings of fact and conclusions of law which it deems relevant and appropriate to the disposition of Applicant's claims for habeas corpus relief.
Because this Court does not hear evidence, Ex Parte Rodriguez, 334 S.W.2d at 294, this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. (1) A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. (2)
IT IS SO ORDERED THIS THE SEVENTH DAY OF DECEMBER, 2005.
EN BANC
DO NOT PUBLISH
1. 2.